Bally Sheng Balson v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hope of Craighead |
| Judgment Date | 02 February 2005 |
| Neutral Citation | [2005] UKPC 2 |
| Court | Privy Council |
| Docket Number | Appeal No. 26 of 2004 |
| Date | 02 February 2005 |
[2005] UKPC 2
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
Privy Council
[Delivered by Lord Hope of Craighead]
The appellant was convicted on 17 March 1998 of the murder of Deirdre Raphael. The trial judge sentenced him to death, as he was required to do by section 2 of the Offences against the Person Act. On 26 October 1998 the Eastern Caribbean Court of Appeal (Commonwealth of Dominica) (Byron CJ (ag) and Singh and Redhead JJA) dismissed his appeal and affirmed the conviction and sentence. He has now appealed against the judgment of the Court of Appeal to their Lordships' Board.
At the conclusion of the hearing on 6th December 2004 their Lordships announced that they would dismiss the appeal against conviction, allow the appeal against sentence, quash the sentence of death and remit the case to the High Court of Dominica for reconsideration of the question of sentence. Their Lordships now give their reasons for those decisions.
The appeal against conviction: the facts
At the time of her murder Deirdre Raphael ("the deceased") was living in the village of Bellevue Chopin with the appellant, who was her boyfriend, and her three children, Marshall Rolle, who was thirteen years old, and Russell Michel and Mislee Rolle, who were aged about ten and nine. She was expecting another child, as she was about seven months pregnant. She met her death at some point between the late evening of Thursday 12 December 1996 and the early hours of Friday 13 December 1996. She was in her bedroom when she was killed. Her neck was broken and she was asphyxiated. There were no eyewitnesses. The only question in the case was whether it was the appellant who murdered her.
The appellant first met the deceased, who was in business as a flower seller, about three years earlier. At that time she was in the process of obtaining a divorce from her husband Ross Rolle. They became friendly and started a relationship. After a while the appellant went to live with the deceased and her three children at her home. This was a block house which had been built on pillars. It had three bedrooms, a drawing room, kitchen, toilet and bathroom. There was also a porch. Stairs led up to the door of the house, which led directly into the drawing room.
The appellant helped the deceased by buying flowers for her on Friday and Saturday mornings. She used to go to Guadeloupe herself to sell them, but latterly due to the state of her pregnancy she had been sending the appellant to Guadeloupe to do this for her. The relationship became difficult and they quarrelled frequently. When there was no trouble the appellant used to sleep with the deceased in her bedroom. But when there was a disagreement he would sleep in the drawing room or on the porch. By December 1996 Mislee, who had a bedroom of her own in the deceased's house, had started sleeping in another house nearby with the deceased's grandmother.
On Tuesday 10 December 1996 the appellant went to Guadeloupe to sell flowers. He returned to Dominica on Thursday morning 12 December. He spent that night in the deceased's house. At about 6.30 am the next day Russell and Marshall found the deceased lying dead in her bedroom. According to a post mortem which was carried out at 4 pm that day the cause of death was asphyxiation caused by external pressure on the neck. The death was contributed to by a fracture of the neck at the second neck vertebra. There were various facial injuries, including multiple swellings and haemorrhages, lip abrasions and a blood clot in the left eye. The pathologist, Dr Bellot, estimated that she had died at least 12 but no more than 24 hours earlier. On his findings the death occurred not later than 4 am on 13 December.
There were no eyewitnesses to the killing, and there was no scientific evidence that linked the appellant to the deceased's death. The evidence against him was circumstantial. But it was supported by answers that he gave when he was interviewed shortly after the death at the Police Headquarters by Corporal Daniel Carbon. The case for the prosecution concentrated on the evidence of the two children Russell and Marshall and of various other people who saw and spoke to the appellant between the late evening of 12 December and on the early afternoon of 13 December when he was asked by a police officer to accompany him to the police station, and on Corporal Carbon's description of what he found when he examined the house shortly after 8 am on 13 December. Their evidence can best be summarised by taking the relevant events in the order that they occurred during this period.
The prosecution's evidence
At about 7 pm on 12 December the appellant quarrelled with the deceased. They were arguing about the money that he had received for the flowers he had been selling in Guadeloupe. He left the house and Marshall went to the kitchen to prepare supper. By about 9 pm the appellant had returned. Marshall saw him in the drawing room, where he was writing something at a table. The deceased was in her bedroom crying. She came out of the room and had some supper. At about 9.30 pm she returned alone to the bedroom. The appellant was still in the drawing room. About ten minutes later Marshall went into the bedroom which he shared with Russell. He could hear the deceased talking to herself in her bedroom.
At 10.45 pm Agrippa Morancie, who was the deceased's brother and a regular visitor, called at the house to collect some bread that he had left there earlier. The appellant answered the door. Agrippa waited in the main doorway while the appellant went for the bread. While he was there he noticed that there were cushions on the floor in the drawing room. He did not see the deceased. He assumed that she had gone to bed. At about 11.15 pm Marshall got up to go to the lavatory. He heard the deceased talking in her bedroom. She seemed to be crying, and he spoke to her. The appellant was sitting on the sofa in the drawing room watching television. They said goodnight to each other, and Marshall went back to his bedroom and fell asleep.
Later that night both Marshall and Russell were wakened by the noise of a disturbance. Loud screaming and crying was coming from the deceased's bedroom. They heard the deceased screaming the words "Bally behave" repeatedly. Marshall said that he did not go to her room because he was afraid. He then heard a door slam. Later he heard the deceased's door being opened. Someone went to the bathroom and turned the water on. After a while the water stopped. Someone put the light on, went into Mislee's room and then went into the kitchen. Then all the lights went off. He heard the tower bolts on the inside of the front door being unlatched and the noise of someone going outside. About five minutes later he heard the person come back inside and lock the tower bolts again from inside. He went back to sleep.
At about 5 am the next morning Russell heard the appellant leave the house. He heard him pass through the kitchen door and a van starting up. He said that the appellant usually left at about 6.30 am. The appellant drove off in the deceased's Toyota pick up truck. After about 150 yards he was flagged down by a neighbour, Vanya Williams, and her husband who were waiting at the village bus stop. They asked him to give them a lift and he agreed to do so. But he refused to let them sit in the front of the van with him as his brief case was there. Vanya Williams said that that she did not see any marks or stains on his clothes and that he seemed to be peaceful.
At about 6 am Marshall and Russell got up. Marshall went to the kitchen to prepare breakfast. He saw that the kitchen lights were on. He then went to the drawing room. Cushions from the sofa and a bedspread were lying on the floor. The drawing room door which led outside was closed, but the tower bolts on the inside were unlatched. He made some breakfast for himself and Russell, and for Mislee who returned to the house shortly afterwards, and got ready for school. He and Russell went into the deceased's bedroom to wake her up as Mislee wanted her hair combed and they needed their bus fare to go to school. They found the deceased lying on the floor. She was on her back with her right arm on her face, and there was blood on her wrist and her left hand. They and Mislee went to the deceased's grandmother's house to get help. Marshall said that he was surprised that the appellant was not at home that early in the day.
At about 7.30 am Acting Police Inspector Defoe, who lived nearby, heard loud crying coming from the deceased's house. He went there to see what was happening. On opening the door of one of the bedrooms he saw the deceased lying on her back with blood stains on her face. He asked everyone to leave. Corporal Carbon, who was stationed at the Grand Bay Police Station, was notified. He arrived at the house with other police officers shortly after 8 am. He found the deceased lying on her back on the floor in the bedroom. Her right arm was across her face and blood was coming from her mouth. Her body was taken to hospital, where she was pronounced dead. From there she was taken to the mortuary.
Corporal Carbon examined the house. The main front door leading to the drawing room was secured by lock and key. It could be locked and unlocked only from the outside with a key to the lock. An additional tower bolt secured the door from inside. This door could be locked and unlocked without a key from inside, but it could only be locked and unlocked from outside with a key. This was the door where Agrippa Morancie waited when he came to collect the bread. There was another door on the same side of the house which led to the...
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